The Internet after Aereo: How to Save Innovation from the Public Performance Right

Patrick C. Tricker · 17 Vand. J. Ent. & Tech. 3


The Supreme Court’s decision in American Broadcasting Companies, Inc. v. Aereo, Inc. overturned the Second Circuit’s rule that separate copies create separate performances without clarifying the scope of a performance. The decision creates significant ambiguity surrounding the public performance right and potentially massive liability for cloud-computing companies. Since cloud computing allows customers to run programs remotely from a company’s servers, two independent customers watching different copies of the same movie from the same cloud results in the cloud conducting a public performance. This Note examines this problem, concludes that the current public performance regime has become obsolete, and proposes a new bright-line safe harbor for cloud-computing companies based on the fair use doctrine, dubbed the “Fair Performance Doctrine.”